50 U.S. Code § 1805 - Issuance of order

Upon an application made pursuant to section
1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that—

(1)the application has been made by a Federal officer and approved by the Attorney General;

(2)on the basis of the facts submitted by the applicant there is probable cause to believe that—

(A)the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and

(B)each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;

(3)the proposed minimization procedures meet the definition of minimization procedures under section
1801(h) of this title; and

(4)the application which has been filed contains all statements and certifications required by section
1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section
1804(a)(7)(E)[1] of this title and any other information furnished under section
1804(d)[1] of this title.

(b) Determination of probable cause

In determining whether or not probable cause exists for purposes of an order under subsection (a)(2) of this section, a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.

(c) Specifications and directions of orders

(1) Specifications

An order approving an electronic surveillance under this section shall specify—

(A)the identity, if known, or a description of the specific target of the electronic surveillance identified or described in the application pursuant to section
1804(a)(3) of this title;

(B)the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known;

(C)the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance;

(D)the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance; and

(E)the period of time during which the electronic surveillance is approved.

(2) Directions

An order approving an electronic surveillance under this section shall direct—

(A)that the minimization procedures be followed;

(B)that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person, or in circumstances where the Court finds, based upon specific facts provided in the application, that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;

(C)that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and

(D)that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.

(3) Special directions for certain orders

An order approving an electronic surveillance under this section in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown shall direct the applicant to provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility or place, unless the court finds good cause to justify a longer period of up to 60 days, of—

(A)the nature and location of each new facility or place at which the electronic surveillance is directed;

(B)the facts and circumstances relied upon by the applicant to justify the applicant’s belief that each new facility or place at which the electronic surveillance is directed is or was being used, or is about to be used, by the target of the surveillance;

(C)a statement of any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed; and

(D)the total number of electronic surveillances that have been or are being conducted under the authority of the order.

(d) Duration of order; extensions; review of circumstances under which information was acquired, retained or disseminated

(1)An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that

(A) an order under this section shall approve an electronic surveillance targeted against a foreign power, as defined in section
1801(a)(1), (2), or (3) of this title, for the period specified in the application or for one year, whichever is less, and

(B) an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.

(2)Extensions of an order issued under this subchapter may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order, except that

(A) an extension of an order under this chapter for a surveillance targeted against a foreign power, as defined in paragraph (5), (6), or (7) of section
1801(a) of this title, or against a foreign power as defined in section
1801(a)(4) of this title that is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no communication of any individual United States person will be acquired during the period, and

(B) an extension of an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for a period not to exceed 1 year.

(3)At or before the end of the period of time for which electronic surveillance is approved by an order or an extension, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.

(e) Emergency orders

(1)Notwithstanding any other provision of this subchapter, the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General—

(A)reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained;

(B)reasonably determines that the factual basis for the issuance of an order under this subchapter to approve such electronic surveillance exists;

(C)informs, either personally or through a designee, a judge having jurisdiction under section
1803 of this title at the time of such authorization that the decision has been made to employ emergency electronic surveillance; and

(D)makes an application in accordance with this subchapter to a judge having jurisdiction under section
1803 of this title as soon as practicable, but not later than 7 days after the Attorney General authorizes such surveillance.

(2)If the Attorney General authorizes the emergency employment of electronic surveillance under paragraph (1), the Attorney General shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.

(3)In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4)A denial of the application made under this subsection may be reviewed as provided in section
1803 of this title.

(5)In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

(6)The Attorney General shall assess compliance with the requirements of paragraph (5).

Notwithstanding any other provision of this subchapter, officers, employees, or agents of the United States are authorized in the normal course of their official duties to conduct electronic surveillance not targeted against the communications of any particular person or persons, under procedures approved by the Attorney General, solely to—

(1)test the capability of electronic equipment, if—

(A)it is not reasonable to obtain the consent of the persons incidentally subjected to the surveillance;

(B)the test is limited in extent and duration to that necessary to determine the capability of the equipment;

(C)the contents of any communication acquired are retained and used only for the purpose of determining the capability of the equipment, are disclosed only to test personnel, and are destroyed before or immediately upon completion of the test; and:

(D)Provided, That the test may exceed ninety days only with the prior approval of the Attorney General;

(2)determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance, if—

(A)it is not reasonable to obtain the consent of persons incidentally subjected to the surveillance;

(B)such electronic surveillance is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and

(C)any information acquired by such surveillance is used only to enforce chapter
119 of title
18, or section
605 of title
47, or to protect information from unauthorized surveillance; or

(3)train intelligence personnel in the use of electronic surveillance equipment, if—

(A)it is not reasonable to—

(i)obtain the consent of the persons incidentally subjected to the surveillance;

(ii)train persons in the course of surveillances otherwise authorized by this subchapter; or

(iii)train persons in the use of such equipment without engaging in electronic surveillance;

(B)such electronic surveillance is limited in extent and duration to that necessary to train the personnel in the use of the equipment; and

(C)no contents of any communication acquired are retained or disseminated for any purpose, but are destroyed as soon as reasonably possible.

(g) Retention of certifications, applications and orders

Certifications made by the Attorney General pursuant to section
1802(a) of this title and applications made and orders granted under this subchapter shall be retained for a period of at least ten years from the date of the certification or application.

(h) Bar to legal action

No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this chapter for electronic surveillance or physical search.

(i) Pen registers and trap and trace devices

In any case in which the Government makes an application to a judge under this subchapter to conduct electronic surveillance involving communications and the judge grants such application, upon the request of the applicant, the judge shall also authorize the installation and use of pen registers and trap and trace devices, and direct the disclosure of the information set forth in section
1842(d)(2) of this title.

(B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;

(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and

(D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.

This chapter, referred to in subsecs. (d) and (h), was in the original “this Act”, meaning Pub. L. 95–511, Oct. 25, 1978, 92 Stat. 1783, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section
1801 of this title and Tables.

Codification

As originally enacted, Pub. L. 107–56, § 225, amended this section by adding subsec. (h) relating to bar of legal action after subsec. (g). The section already contained a subsec. (h). Both Pub. L. 107–108, § 314(a)(2)(C), andPub. L. 107–273, § 4005(c), made amendments retroactive to the date of enactment of Pub. L. 107–56which had the effect of redesignating subsec. (h), relating to bar of legal action, as subsec. (i) and transferring it to appear at the end of this section. See 2001 Amendment notes, Effective Date of 2002 Amendment note, and Effective Date of 2001 Amendment note below.

2008—Subsec. (a). Pub. L. 110–261, § 105(a)(1), redesignated pars. (2) to (5) as (1) to (4), respectively, and struck out former par. (1) which read as follows: “the President has authorized the Attorney General to approve applications for electronic surveillance for foreign intelligence information;”.

Subsec. (c)(1)(D) to (F). Pub. L. 110–261, § 105(a)(3), inserted “and” after semicolon at and of subpar. (D), substituted a period for “; and” in subpar. (E), and struck out subpar. (F) which read as follows: “whenever more than one electronic, mechanical, or other surveillance device is to be used under the order, the authorized coverage of the devices involved and what minimization procedures shall apply to information subject to acquisition by each device.”

Subsec. (c)(1)(A). Pub. L. 109–177, § 108(a)(2)(A), substituted “specific target of the electronic surveillance identified or described in the application pursuant to section
1804(a)(3) of this title” for “target of the electronic surveillance”.

Subsec. (c)(2)(B). Pub. L. 107–56, § 206, inserted “, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,” after “specified person”.

Subsec. (e)(1). Pub. L. 107–56, § 207(a)(1), inserted “(A)” after “except that” and “, and (B) an order under this chapter for a surveillance targeted against an agent of a foreign power, as defined in section
1801(b)(1)(A) of this title may be for the period specified in the application or for 120 days, whichever is less” before period at end.

Subsec. (e)(2). Pub. L. 107–56, § 207(b)(1), as amended by Pub. L. 107–108, § 314(c)(1), inserted “(A)” after “except that” and “, and (B) an extension of an order under this chapter for a surveillance targeted against an agent of a foreign power as defined in section
1801(b)(1)(A) of this title may be for a period not to exceed 1 year” before period at end.

1984—Subsec. (f)(2)(C). Pub. L. 98–549substituted “section
705” for “section
605” in the original to accommodate renumbering of sections in subchapter VI (section
601 et seq.) of chapter
5 of Title
47, Telegraphs, Telephones, and Radiotelegraphs, by section 6(a) ofPub. L. 98–549. Because both sections translate as “section
605 of Title
47”, the amendment by Pub. L. 98–549resulted in no change in text.

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–261effective July 10, 2008, except as provided in section 404 ofPub. L. 110–261, set out as a Transition Procedures note under section
1801 of this title, see section 402 ofPub. L. 110–261, set out as an Effective Date of 2008 Amendment note under section
1801 of this title.

“(1) In general.—Effective June 1, 2015, the Foreign Intelligence Surveillance Act of 1978 [50 U.S.C. 1801 et seq.] is amended so that sections
501,
502, and
105(c)(2) [50 U.S.C. 1861, 1862, and 1805(c)(2)] read as they read on October 25, 2001.

“(2) Exception.—With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in paragraph (1) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect, such provisions shall continue in effect.”

Effective Date of 2004 Amendment

For Determination by President that amendment by Pub. L. 108–458take effect on Apr. 21, 2005, see Memorandum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section
3001 of this title.

Amendment by Pub. L. 108–458effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) ofPub. L. 108–458, set out in an Effective Date of 2004 Amendment; Transition Provisions note under section
3001 of this title.

Amendment by Pub. L. 98–549effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) ofPub. L. 98–549, set out as a note under section
521 of Title
47, Telecommunications.

LII has no control over and does not endorse any external Internet site that contains links to or references LII.